Goff v. Clarksburg Dairy Co.

• Decision Date: 20 April 1920
• Citation: 86 W.Va. 237
• Parties: Nathan Goff, Infant Etc. v. Clarksburg Dairy Company.
• Court: West Virginia Supreme Court

86 W.Va. 237

Nathan Goff, Infant Etc.

v.Clarksburg Dairy Company.

Supreme Court of Appeals of West Virginia.

Submitted April 14, 1920.

Decided April 20, 1920.

1. Master and Servant Driver Returning from Luncheon May be Acting Within Scope of Employment.

A jury may properly find that an injury negligently inflicted upon a person by a motor truck driven by a servant of its owner, while returning from his luncheon agreeably to his usual custom and practice assented to by the master, was a result or an incident of an act done by the servant within the scope of his employment, for which the master is liable, (p. 239).

2. Municipal Corporations Driver of Vehicle Passing one on Which Children Are Riding Must Take Reasonable Precautions.

The driver of one vehicle following another on the rear of which there are children whose attitudes indicate purpose or liability suddenly to step off of it, desiring to pass such other, is bound to adopt and use reasonable precautions for the safety of the children, such as vigilance, warning and reduction of speed, if necessary, (p. 240).

3. Same Driver Follotoing Vehicle on Which Children Are Rid-ing Need Not be Able to Stop Distantly.

But he is not required to have his car under such control, in such cases, that he may stop it instantly, upon a sudden and unexpected intrusion of a child so situated, upon the path or course of the car and immediately in front of it. (p. 242).

4. Same Sudden Intrusion of Child in Path of Vehicle Does Not Necessarily Preclude Liability.

Sudden intrusion of a child so situated, upon the path or course of a passing vehicle, does not necessarily preclude liability of the driver of such vehicle for injuries resulting, since both parties have the right to use the highway and are under duty to exercise care and caution, (p. 243).

5. Negligence Child Eight Years Old May be Guilty of Contributory Negligence in Use of Highway.

A child eight years old may be guilty of negligence in the use of a highway, constituting the proximate cause of his own injury, or of contributory negligence in a transaction in which he suffers injury, barring right of recovery of damages therefor; and, if, in a trial of an action for such damages, there is evidence tending to prove such negligence or contributory negligence, a prayer for an interrogatory requiring the jury to find whether it existed or not should be granted, (p. 243).

6. Same Child Eight Years Old is Presumed Incapable of Appre-ciating Danger.

In the trial of such a case, it is not error to instruct the jury that there is a presumption of incapacity on the part of an infant eight years old to appreciate danger, which the defendant must rebut by evidence or circumstances disclosed by the trial, (p. 243).

Error to Circuit Court, Harrison County.

Action by Nathan Goff, infant, etc., against the Clarksburg Dairy Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

J. E. Law and A. F. McCue, for plaintiff in error.

J. Philip Clifford, for defendant in error.

Poffenbarger, Judge:

The $600.00 judgment complained of on this writ of error was recovered as damages for an alleged negligent injury of a boy about, eight or nine years old, on a business street of the City of Clarksburg, by a motor truck belonging to the defendant and driven by one of its employees, while returning from his luncheon to the defendant's place of business, agreeably to his usual custom and with the knowledge and consent of his employer.

One ground of defense was lack of relation of master and servant between the owner and driver, on the occasion of the injury. Defendant's) general manager admitted a grant of permission to the servant to use the car as be was using it at that time, but he says it was granted only by way of accommodation to the servant. In this connection, however, he said he tried to accommodate his employees, for he had occasion to ask favors of them, labor being scarce and hard to get. As the injury occurred on the return trip, some authorities would hold the relation to have been restored, if interrupted by the trip to luncheon. V anneman v. Walker Laundry Co., 150 S. W. 1128; Graham v..Henderson, 98 Atl. 870; McKiernan v. Lehmaier, 81 Atl. 969; Rudd v. Fox, 112 Minn. 477. Whether the proposition is legally sound, we do not stop to inquire. By the great weight of authority, the relation of master and servant was not so clearly excluded by the circumstances disclosed here, that a jury could not find and affirm its existence. Reynolds v. Denholm, 213 Mass. 576; Bourne v. Whitman, 209 Mass. 155. The defendant's consent to the use made of the truck is a large element in the case. When that appears, the jury, if not the court, may say the relation existed. Siejfen v. McNaughton (Wis.) 124 N. W. 1016, 26 L. E. A. (N. S.) 382. It is a circum- stance tending to prove the use permitted was within the informal contract of employment.

Another ground of defense is that the injury was an unavoidable accident, if not the result of the plaintiff's own negligence and carelessness. This contention is based upon the theory that the plaintiff was riding on the rear of a bakery or bread wagon which the defendant's truck had occasion to pass, and, just as it started to pass, the boy got down in front of it, at such time and in such manner that there was no opportunity to avoid contact with him. But this hypothesis is contradicted. The testimony of the boy who answered the questions propounded to him distinctly and intelligently, denies that he saw any wagon at the time and place of the injury and describes his journey along the sidewalks and across the street until he was struck. Besides, he asserts positively that he had not been on any wagon. No other witness for the plaintiff knew whether he had been or not. One witness for the defendant says he saw the boy on the wagon and saw him step off in front of the truck. The driver did not see him until he suddenly discovered him in front of the truck, and so near that he could not stop it in time to prevent injury; but he says he had come from the direction of the wagon and was crossing to the north side of the street, that there were boys on the wagon and that he saw no boys on the south, side of the street, other than those on the wagon. A pool or large spot of blood near the north curb is relied upon as matter of contradiction of the defendant's theory and corroboration of the plaintiff's. The boy was struck on the forehead by the right front fender and half or more of his scalp cut and torn loose, but he fell between the wheels and the car passed over him without further injury. The blood spot probably locates the position of his head while he was down. One witness says the truck was north of the center of the forty-foot street, when it struck the boy. There was conflict in the evidence also as to whether the driver gave any warning of his approach.

If the defendant's theory that the boy had been on the wagon, could be accepted as having been...